Book contents
- Frontmatter
- Contents
- Foreword
- Disclaimer
- Acknowledgments
- Preface
- Editorial conventions
- Glossary of commonly used terms
- Table of GATT/WTO cases
- 1 Admissibility and jurisdiction
- 2 Attribution of conduct
- 3 Breach of an obligation
- 4 Conflicts between treaties
- 5 Countermeasures
- 6 Due process
- 7 Evidence before international tribunals
- 8 Good faith
- 9 Judicial economy
- 10 Municipal law
- 11 Non-retroactivity
- 12 Reasonableness
- 13 Sources of international law
- 14 Sovereignty
- 15 Treaty interpretation
- 16 Words and phrases considered
- Index
3 - Breach of an obligation
Published online by Cambridge University Press: 05 July 2015
- Frontmatter
- Contents
- Foreword
- Disclaimer
- Acknowledgments
- Preface
- Editorial conventions
- Glossary of commonly used terms
- Table of GATT/WTO cases
- 1 Admissibility and jurisdiction
- 2 Attribution of conduct
- 3 Breach of an obligation
- 4 Conflicts between treaties
- 5 Countermeasures
- 6 Due process
- 7 Evidence before international tribunals
- 8 Good faith
- 9 Judicial economy
- 10 Municipal law
- 11 Non-retroactivity
- 12 Reasonableness
- 13 Sources of international law
- 14 Sovereignty
- 15 Treaty interpretation
- 16 Words and phrases considered
- Index
Summary
Introduction
Article 12 of the ILC Articles on State Responsibility, entitled ‘Existence of a breach of an international obligation’, provides that:
There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.
This chapter covers statements by WTO adjudicators addressing five concepts regarding the existence of a breach of an international obligation, including: (i) the concept of a breach; (ii) breaches arising from omissions; (iii) breaches arising from legislation as such; (iv) breaches arising from composite measures; and (v) the concept of harmless error.
Concept of a breach
WTO panels and the Appellate Body have used various terms interchangeably when referring to measures that breach treaty obligations, including measures that ‘breach’ an obligation, that are ‘inconsistent’ with an obligation, that ‘violate’ an obligation, that are ‘incompatible’ with an obligation, that are ‘contrary’ to an obligation, that are not ‘in conformity’ with an obligation, and that ‘fail to comply’ with an obligation.
For example, in EC – Asbestos, the Appellate Body used at least four different expressions interchangeably in the context of contrasting ‘violation’ complaints and ‘non-violation’ complaints in paragraphs (a) and (b) of Article XXIII:1 of the GATT (including “failed to carry out”, “acted inconsistently with”, “conflicts with” and “violates”):
Article XXIII:1(a) sets forth a cause of action for a claim that a Member has failed to carry out one or more of its obligations under the GATT 1994. A claim under Article XXIII:1(a), therefore, lies when a Member is alleged to have acted inconsistently with a provision of the GATT 1994. Article XXIII:1(b) sets forth a separate cause of action for a claim that, through the application of a measure, a Member has ‘nullified or impaired’ ‘benefits’ accruing to another Member, ‘whether or not that measure conflicts with the provisions’ of the GATT 1994.
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- Publisher: Cambridge University PressPrint publication year: 2015